Predictive analytics is the process by which analysts are able extract information from a huge amount of data in order to reveal patterns and make predictions about what might happen in the future. Predictive analytics is not a crystal ball, but it is a tool that looks into the future with an acceptable level of reliability.

Predictive models are typically used to help analysts make business forecasts, military decisions and scientific analysis. Baseball is a business and the movie “Moneyball” made predictive analytics famous.

In the criminal justice system holding people accountable for breaking the law is not a business, but predictive analytics has made its way into the process through the use of assessments to predict future risk. U.S. Attorney General Eric Holder doesn’t think it’s a good idea.

In a recent speech, Holder offered caution regarding the use of risk assessments at sentencing, “Although these measures were crafted with the best of intentions, I am concerned that they may inadvertently undermine our efforts to ensure individualized and equal justice.”

Risk assessments are not entirely new to the criminal justice system. Paroling authorities have long used actuarial risk assessment tools for parole decisions.

University of Pennsylvania Professor Richard Berk created a risk assessment model for the Philadelphia Adult Probation and Parole Department. The model examined more than 24 variables including criminal history, age at first crime, gender, the type of crime and where the crime was committed. Through powerful computer analysis Berk found a subset of people much more likely to commit homicide when released from prison and a subset of offenders who were least likely to re-offend.

Holder doesn’t seem to have a problem with using predictive analytics on the “back-side” of the punishment scheme. “When it comes to front-end applications – such as sentencing decisions, where a handful of states are now attempting to employ this methodology – we need to be sure the use of aggregate data analysis won’t have unintended consequences,” said Holder.

Florida is utilizing a risk assessment instrument for purposes of prison diversion programs. Illinois has authorized the development of risk assessment for purposes of sentencing. Tennessee is including a risk assessment tool in its pre-sentence reports. Washington is using risk assessment for purposes of placement in residential drug treatment. North Carolina is considering risk assessment when imposing community-based punishment. Pennsylvania has mandated its Commission on Sentencing to establish as assessment tool for sentencing.

Holder further noted, “Equal justice can only mean individualized justice, with charges, convictions, and sentences befitting the conduct of each defendant and the particular crime he or she commits.”

Virginia has been utilizing risk assessment analysis at sentencing since 1994. In fact, for many years Virginia was the only state using risk information at the time of sentencing.

Page 2 of 2 - Virginia’s sentencing scheme was not just about diverting nonviolent low risk offenders. It was also about “incapacitating” high-risk offenders. In the process of creating new sentence guidelines the sentencing commission studied thousands of prison terms and determined the actual time served for specific offenses and then set sentence ranges based on those findings.

A former director of the Virginia Criminal Sentencing Commission suggested the next step was to weed out those offenders “who we are afraid of” from those “we were just ticked-off at.” For those feared, longer prison sentences. For those that merely annoyed, diversion to alternative punishment.

“The idea of sentencing defendants based on risk factors may help to reduce the prison population, but in certain circumstances it may run the risk of imposing drastically different punishments for the same crimes,” Holder told a Philadelphia audience of defense attorneys.

Last week, Holder and the U.S. Department of Justice asked the U.S. Sentencing Commission to study the use of data-driven analysis in sentencing and to issue policy recommendations based the study.

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Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was recently released by McFarland Publishing, http://www.mcfarlandpub.com/book-2.php?id=978-0-7864-7979-5. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.